Search and rescue, disembarkation and relocation arrangements in the Mediterranean Sailing Away from Responsibility? - CEPS
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Search and rescue, disembarkation
and relocation arrangements in the Mediterranean
Sailing Away from Responsibility?
Sergio Carrera and Roberto Cortinovis
No. 2019-10, June 2019
Abstract
Search and Rescue (SAR) and disembarkation of persons in distress at sea in the Mediterranean
continue to fuel divisions among EU member states. The ‘closed ports’ policy declared by the
Italian Ministry of Interior in June 2018, and the ensuing refusal to let NGO ships conducting
SAR operations enter Italian ports, has resulted in unresolved diplomatic rows between some
European governments and EU institutions, and grave violations of the human rights of people
attempting to cross the Mediterranean.
This paper examines how current political controversies surrounding SAR and disembarkation
in the Mediterranean unfold in a policy context characterised by a ‘contained mobility’
paradigm that has materialised in the increasing penalisation of humanitarian SAR NGOs, a
strategic and gradual operational disengagement from SAR activities by the EU and its member
states, and the delegation of containment tasks to the Libyan coast guard (so-called ‘pullbacks’),
a development that has been indirectly supported by EU institutions. These policies have
contributed to substantially widen the gap in SAR capabilities in the Central Mediterranean.
This research has been conducted under the ReSOMA project. ReSOMA receives funding from the European Union’s Horizon 2020
research and innovation programme under the grant agreement 770730. The opinions expressed in this paper are attributable solely
to the authors in a personal capacity and not to any institution with which they are associated, nor can they be taken in any way to
reflect the views of the European Commission'.
CEPS Papers in Liberty and Security in Europe offer the views and critical reflections of CEPS researchers and external collaborators on
key policy discussions surrounding the construction of the EU’s Area of Freedom, Security and Justice. The series encompasses policy-
oriented and interdisciplinary academic studies and comment on the implications of Justice and Home Affairs policies within Europe
and elsewhere in the world.
Sergio Carrera is Senior Research Fellow and Head of the Justice and Home Affairs unit at CEPS and part-time Professor at the Migration
Policy Centre, European University Institute in Florence. He is also Visiting Professor at the Paris School of International Affairs (PSIA)
at Sciences Po (France). Roberto Cortinovis is a Researcher at CEPS Justice and Home Affairs unit.
978-94-6138-743-1
Available for free downloading from the CEPS website (www.ceps.eu) © CEPS 2019
CEPS ▪ Place du Congrès 1 ▪ B-1000 Brussels ▪ Tel: (32.2) 229.39.11 ▪ www.ceps.euThe paper challenges the assumption that national governments and EU institutions can bypass their rule of law and human rights responsibilities under international maritime, human rights and refugee law, as well as those laid down in EU Treaties and national constitutional laws. It argues that, despite the many barriers to ensuring effective remedies for the affected individuals, the application of the notion of ‘portable justice’ in the context of EU law has the potential to capture EU and national agent responsibilities and liabilities for human rights violations in the Mediterranean and crimes against humanity in Libya. Since the summer of 2018, a number of cases of disembarkations following NGO SAR operations have been addressed through ad hoc disembarkation and relocation arrangements from Italy and Malta, involving a limited number of member states on a voluntary and secretive basis. The paper provides a first critical examination of these ‘arrangements’ and shows how, since the beginning of 2019, the European Commission and EU agencies (Frontex and EASO) have assisted in the implementation of these ‘extra-EU Treaty’ arrangements. This paper argues that the use of solidarity ‘à la carte’ or ‘variable geometry’ in asylum policies takes Europeanisation backwards, allows for a ‘cherry picking’ approach by EU governments and challenges the consistency of the EU asylum acquis. The paper concludes by putting forward some options to addressing SAR and disembarkation challenges and recommends that these should be based on the principle of ‘equal solidarity’, whereby all EU member states share equally the responsibility for asylum seekers in full compliance with EU constitutive principles and fundamental rights.
Contents
Executive summary...................................................................................................................... i
The politics of SAR criminalisation and disengagement .......................................................... i
‘Contained mobility’ and portable justice............................................................................... ii
Disembarkation platforms and controlled centres .................................................................iv
Ad hoc disembarkation and relocation arrangements ........................................................... v
The way forward: equal solidarity .......................................................................................... v
1. Introduction ........................................................................................................................ 1
2. The politics of SAR criminalisation and disengagement in the Central Mediterranean ..... 3
2.1 Policing SAR NGOs........................................................................................................ 3
2.2 Shrinking EU operational space and delegating containment ..................................... 7
3. International and EU legal standards: portable justice ....................................................... 9
3.1 International law of the sea ....................................................................................... 11
3.2 International, regional and EU human rights law ...................................................... 14
3.3 EU maritime and border surveillance standards ........................................................ 19
4. Taking stock of policy proposals on SAR and disembarkation in the Mediterranean ....... 20
4.1 Controlled Centres and Regional Disembarkation Platforms ..................................... 20
4.2 Ad hoc disembarkation and relocation arrangements............................................... 23
4.2.1. Ad hoc relocation arrangements explained ............................................................ 23
4.2.2. Differentiated integration in EU asylum policy: lasting or unequal solidarity? ....... 28
5. Conclusions: equal solidarity ............................................................................................ 31
List of abbreviations.................................................................................................................. 34
References ................................................................................................................................ 36
List of Figures and Tables
Figure 1. Contained mobility and portable justice .................................................................... 11
Table 1. Number of Persons Rescued under the Coordination of Italian MRCC and Number of
People Returned by Libyan Coast Guard .................................................................................... 6
Table 2. Ad hoc disembarkation and relocation arrangements (June – October 2018) ........... 24
Table 3. Ad hoc disembarkation and relocation arrangements facilitated by the Commission and
EU agencies (January – June 2019) ........................................................................................... 26Executive summary
T his paper examines recent political controversies and policy developments in search and
rescue (SAR) and disembarkation in the Central Mediterranean. Disputes in this area
among Mediterranean coastal states are by no means a novelty. They find their roots in
long-standing disagreements over the interpretation and applicability of relevant international
law of the sea and human rights obligations and by the inability (or unwillingness) of EU
member states to devise cooperative agreements among them to enhance the effectiveness
and efficiency of SAR operations. However, over the last few years, those disputes have been
emphasised by the increasing politicisation of SAR and disembarkation issues at the EU and
national levels and by the emergence of increasingly restrictive policy responses towards
migrants and asylum seekers attempting to cross the Mediterranean Sea.
The politics of SAR criminalisation and disengagement
This paper argues that EU and member state policy responses have been driven by a politics of
SAR criminalisation and disengagement. The latter have materialised in a number of
interrelated policy responses. First, the increasing policing and criminalisation of civil society
actors and non-governmental organisations involved in SAR activities. Since 2017, actions taken
to disrupt the activity of SAR NGOs have included the seizing and confiscation of NGO boats,
the application of a ‘code of conduct’ limiting their independence, the launch of formal
prosecutions based on unfounded allegations of facilitating irregular immigration and human
smuggling, the refusal by the Italian government to allow access to national ports and, recently,
the imposition of administrative fines against those organisations (Section 2.1 of the paper).
Second, the strategic disengagement of national and EU actors from SAR activities in the Central
Mediterranean. This approach has translated into the incremental ‘backing out’ and reduction
of the operational space of Frontex Joint Maritime Operation Themis (launched in 2018), as
well as the withdrawal of the naval means and SAR-related activities of EUNAVFOR-MED
operation ‘Sophia’ (launched in 2015). Member state and EU disengagement from SAR
activities has been accompanied by the progressive delegation of containment tasks to Libyan
authorities, including in the form of ‘pullbacks’ to Libya of boats carrying migrants headed to
Europe.
Support by the EU and Italian government has materialised in the provision of funding, training,
and equipment aimed at increasing the capacity of the Libyan Coast Guard to conduct unlawful
interdiction operations at sea, enabling Libyan authorities to establish a Libyan Search and
Rescue Region (SRR) and setting up a Libyan Maritime Rescue Coordination Centre (MRCC). The
European Commission has provided indirect financial support to these activities through the
EU Trust Fund for Africa. The Commission has also controversially considered ‘lawful’ the
sharing, with the Libyan Coast Guard, of information on boat sightings by satellite maritime
surveillance technologies, such as EUROSUR Fusion Services under Frontex Themis Joint
Operations and aerial assets of the EUNAVFOR-MED Sophia operation, (Section 2.2).
|iii | CARRERA & CORTINOVIS While in 2018 the total number of irregular entries to Italy across the Central Mediterranean reached its lowest level since 2012, the perverse practical effects of these policies have been well documented and internationally criticised. The shrinking of SAR humanitarian and operational space has led to a surge in the number of deaths in the Mediterranean, with the International Organisation for Migration (IOM) estimating more than 15,000 deaths on the Central Mediterranean route alone from 2014 to 2018. Moreover, the United Nations High Commissioner for Refugees (UNHCR) estimated that more than 45,000 people have been ‘intercepted or rescued’ by the Libyan Coast Guard between 2016 and first half of 2019, and thereby exposed to grave human rights violations and crimes against humanity in a country that remains largely unsafe and in conflict (Section 2.1). ‘Contained mobility’ and portable justice The range of policies aimed at restricting SAR operational capacities and criminalising the humanitarian actors involved in SAR operations may be understood as different components or ‘layers’ of a strategy of contained mobility that aims at limiting and filtering the movements of migrants and asylum seekers at different stages of their journeys. Contained mobility policies have been implemented through a matrix of legal, financial and operational instruments involving EU and member state actors, which have increasingly taken the form of ‘extra-EU Treaty’ tools, such as emergency funds, memoranda of understanding and informal arrangements (Section 3). Policies adopted and/or implemented by European institutions, EU agencies and national authorities have been designed with the aim of escaping legal accountability and liabilities. However, despite the many barriers still existing to ensuring effective justice and remedies for the victims, this paper argues that those policies do not happen in a legal vacuum: they fall within the scope and have the potential of being taken on by international and EU justice venues, actors and instruments. In the case of EU member states, the portable justice approach to the applicability of EU law advocated in this paper implies that member state responsibility is not limited to cases where they exercise jurisdiction over individuals in line with the ECtHR case law, but also extends to all practices falling within the scope of EU law, including the provision of operational assistance by EU agencies and financial support through EU funding instruments (Section 3). The legality and legitimacy of EU and national policies in the field of SAR and disembarkation depend on their compatibility with legal standards stemming from the law of the sea, international and regional human rights law and secondary EU legislation in the field of border surveillance and asylum. First, the international law of the sea stipulates a clear duty for every shipmaster to render assistance in case of vessels or persons in distress at sea and considers the right to life as customary under international law. Coastal states have the obligation to establish effective SAR services ensuring the provision of assistance to any person in distress at sea. The state responsible for the search and rescue region where assistance has been rendered also has
SEARCH AND RESCUE, DISEMBARKATION AND RELOCATION ARRANGEMENTS IN THE MEDITERRANEAN | iii primary responsibility for coordinating SAR activities in due diligence and ‘good faith’ with other states, as well as taking the lead in finding a port for disembarkation in a place of safety. States retain the right to allow or deny access to their national ports. The law of the sea only imposes an ‘obligation of conduct’ to guarantee swift disembarkation in a place of safety of people in distress at sea. However, such an ‘obligation of conduct’ may become an obligation to disembark if no other option is available to ensure the safety of people on board or when the human rights and dignity of the people rescued would be jeopardised by unreasonably delayed disembarkation. While political controversies have continued regarding the exact scope of the concept of ‘place of safety’ under the law of the sea, the International Maritime Organization (IMO) and UNHCR have emphasised that states should avoid actions or inactions leading to disembarkation in unsafe territories and putting people at risk of torture, and/or inhuman or degrading treatment (Section 3.1 of this paper). Second, EU member states obligations under the law of the sea must be read in light of their obligations under international and regional human rights and refugee law. A recent Joint Communication by no less than Five United Nations Special Procedures to the Italian Government issued in May 2019 concluded that the politics of SAR criminalisation and disengagement pursued by that government, including deterring migrants from arriving and facilitating ‘pullbacks’ by Libyan authorities, is leading to grave human rights violations of non- derogable and absolute rights, such as the right to life and non-refoulement, which are in violation of the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention against Torture, and Other Cruel, Inhuman and Degrading Treatment (CAT). EU institutions, agencies and member states also incur responsibility when they directly or indirectly aid, assist, direct and control or coerce another state to engage in a conduct that violates international obligations, and which constitutes an internationally wrongful act in light of the International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). In cases where these acts constitute ‘crimes against humanity’, they fall within the framework of the Rome Statute and the jurisdiction of the International Criminal Court (ICC). Recent requests have been made before the ICC and the ICC Prosecutor to open investigations into the complicity and collusion of high-ranking EU agents and Italian authorities in crimes against humanity in Libya, and into criminal liabilities for well- documented crimes against migrants attempting to transit through the country and experiencing arbitrary detention, enslavement, torture, and other inhuman treatments in detention camps (Section 3.2). The European Court of Human Rights (ECtHR) in its landmark 2012 Hirsi case confirmed the extraterritorial reach of the human rights protection regime when assessing Italian authorities ‘pushbacks’ to Libya of people intercepted at sea. The Strasbourg Court found that, by bringing intercepted migrants on board of Italian Navy vessels before escorting them to Libya, Italian authorities exercised exclusive de jure and de facto control over the persons concerned. The Hirsi doctrine represents the starting point for tackling some of the more sophisticated containment policies currently deployed in the Mediterranean, including those involving the
iv | CARRERA & CORTINOVIS provision of financial, technical and operational support to third country authorities in preventing migrant boats from reaching European shores (‘pullbacks’). Regarding the duty of states to allow disembarkation of migrants rescued at sea, however, the ECtHR has until now left unanswered the issue whether people rescued by NGO boats need to go through the suffering of waiting indefinitely at sea and eventually become ‘vulnerable’ for a government such as Italy to have an obligation to disembark. Third, SAR and disembarkation activities conducted by EU member states conducted in the framework of Frontex joint maritime surveillance operations are covered by EU Regulation 656/2014 establishing rules for the surveillance of the external sea borders in the context of Frontex operational cooperation. The Regulation provides a common EU concept of ‘place of safety’ which is protection driven. It also requires the member state hosting the operation to accept disembarkation of rescued migrants in case there is no other possibility to identify a place of safety rapidly and effectively. Finally, maritime border surveillance by EU member states falls within the scope of the Schengen Border Code (SBC), which applies “without prejudice of(...) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement” (Art. 3.b SBC). Disembarkation platforms and controlled centres Over the last year, EU proposals to address disembarkation issues have centred on the possible establishment of ‘regional disembarkation platforms’ in third countries and ‘controlled centres’ on the EU territory. However, almost one year from their formulation at the June 2018 European Council, such proposals have failed to reach consensus due to their lack of political and legal feasibility. Controlled centres would mean that migrants disembarked in an EU member state would be transferred to these centres for an assessment of their international protection needs. Such ‘centres’ would essentially entail the continuation and further expansion of the hotspot approach deployed in Greece and Italy since 2015, albeit with a more formalised and systematic use of ‘administrative detention’. The hotspot model has not succeeded in preventing forced fingerprinting of individuals, quasi-detention practices, and keeping people in degrading and inhuman reception conditions. Similarly, regional disembarkation platforms have spurred a wide range of criticism and concerns – and have proved to be unfeasible in practice. As the possibility of disembarking individuals in distress at sea in the territory of a third country is conditional on their safety, i.e. including the principle of non-refoulement, the very idea has been considered unlawful and against EU Treaty values laid down in Article 2 of the Treaty on European Union (TEU). Another Joint Communication issued by UN Special Procedures (UN Rapporteurs and two Working Groups) to the European institutions on 18 September 2018 stated that “Outsourcing the responsibility of disembarkation to third countries, in particular those with weak protection systems, only increases the risk of refoulement and other human rights violations”. This idea has also been met with disagreement and criticism among African States, which are justifiably reluctant to accept EU policies that would imply setting up new detention facilities for
SEARCH AND RESCUE, DISEMBARKATION AND RELOCATION ARRANGEMENTS IN THE MEDITERRANEAN | v potentially disembarked people in their territories, as these would endanger their own international and regional commitments to ensure safety and the protection of human rights. Ad hoc disembarkation and relocation arrangements Against the background of disagreements described above, since the summer of 2018, some cases of disembarkation following SAR operations conducted mainly by civil society vessels have been covered through new instruments called “temporary disembarkation and relocation arrangements”. They have involved a small group of member states willing to accept a share of asylum seekers disembarked in Spain, Italy and Malta and involved only a modest number of asylum seekers. While labelled as expressions of ‘pragmatism’ by some EU policy makers, their informal or ‘extra-EU Treaty’ nature raises serious concerns regarding their compliance with EU asylum standards, EU Treaty principles and fundamental rights. Since early 2019, the European Commission has been somewhat involved in the implementation of informal relocation arrangements following disembarkation in Italy and Malta (Section 4.2). The Commission has played the role of ‘facilitator’ or ‘deal broker’ among member states involved in the pledging exercise, and between those states and the Italian and Maltese governments. EU agencies, chiefly the European Asylum Support Office (EASO) and Frontex, have also been mobilised to provide ‘support’ to member states’ authorities concerning disembarked persons, first reception, information provision, registration, and pre- relocation selection procedures. The exact implementation of these arrangements has been described by the Commission as a “workflow” or “step-by-step work plan”. The Commission or EU agencies were only involved in specific stages and limited tasks of the relocation procedure, and were prevented from exercising any monitoring role regarding the overall compliance of adopted procedures with EU standards and the fundamental rights of asylum seekers. In spite of the involvement of the Commission and EU agencies, relocation arrangements have remained intergovernmentally driven and implemented under secretive and unaccountable patterns of cooperation. There continues to be no official publication of the number of migrants or asylum seekers involved, or any available piece of legislation laying down the precise administrative procedures and relocation distribution criteria being applied on the ground. The extent to which the involvement of Commission and EU agencies has helped in ensuring compliance with EU law, in particular by preventing discriminatory distribution of applicants and their fundamental rights between participating member states, is therefore by and large unclear (Section 4.2.1). The way forward: equal solidarity The implementation of ad hoc disembarkation and relocation arrangements has not helped in moving forward with the much-needed reform of the Common European Asylum System (CEAS) and the adoption of a permanent corrective relocation mechanism. The arrangements took place alongside a political choice by successive EU Presidencies of the Council to apply a logic of ‘consensus’ or de facto unanimity inside the Council rooms during the negotiations of
vi | CARRERA & CORTINOVIS the CEAS reform package. This was the case in spite of the existence of a large group of member states – exceeding the threshold for a qualified majority – in favour of engaging in negotiations with the European Parliament on at least some of the legislative files. The choice to pursue unanimity in the Council has undermined the decision-making rules on asylum envisaged in the Treaties – which require Qualified Majority Voting (QMV), and has violated the principle of sincere cooperation among EU institutions. Based on the above, this paper argues that ‘differentiated integration’ in the form of ‘temporary arrangements’ risks leading to unequal rather than lasting solidarity in the CEAS. Similarly, the use of variable geometry or the establishment of ‘coalitions of the willing’ in asylum policy do not further the objectives of the EU and do not reinforce the integration process. Despite their deficiencies and imperfections, EU asylum policies have, to a very large extent, been ‘Europeanised’ and brought under the Community framework. Proposals for flexible integration or ‘solidarité à la carte’ in these fields would be turning the clock backwards three decades and re-injecting intergovernmentalism into fields that now are – despite their current deficiencies and limits – clearly under the remit of an EU competence (Section 4.2.2). This would also allow some member states to lower their own standards and indulge in ‘free riding’ on existing EU and international standards, opening the way for ‘coalitions of the unwilling’ implementing diverging and competing areas of asylum within the Schengen area. The principle of solidarity and fair sharing of responsibility enshrined in Article 80 of the Lisbon Treaty implies equality among all EU member states and a common EU response to the common challenges witnessed in the Mediterranean. The way forward should be guided by a paradigm of ‘equal solidarity’, whereby all EU member states share fairly and equally the responsibility for asylum seekers across the Union in full compliance with EU constitutive principles and fundamental rights. This would translate into the enactment of a set of policies (See Section 5 of the paper) that put EU and national constitutions principles first, as these constitute pre-conditions for legitimate EU policies in the areas of asylum, migration and borders based on mutual trust.
Search and rescue, disembarkation
and relocation arrangements in the Mediterranean
Sailing Away from Responsibility?
Sergio Carrera and Roberto Cortinovis 1
CEPS Paper in Liberty and Security in Europe No. 2019-10, June 2019
Refugees attempting to escape Africa do not claim a right of admission to Europe.
They demand only that Europe, the cradle of human rights idealism and the birthplace of the rule of law, cease
closing its doors to people in despair who have fled from arbitrariness and brutality.
That is a very modest plea, vindicated by the European Convention on Human Rights.
We should not close our ears to it.
Judge Pinto Albuquerque
Concurring Opinion
2012 Hirsi Jamaa and Others v. Italy Judgment
European Court of Human Rights
1. Introduction
Search and Rescue (SAR) and disembarkation of persons in distress at sea in the Mediterranean
continue to fuel divisions among some EU member states. The ‘closed ports’ policy declared by
the Italian ministry of interior in June 2018, and the ensuing refusal to let non-governmental
organisation (NGO) ships conducting SAR operations enter Italian ports, triggered new
diplomatic confrontations between the Italian government and other EU governments
regarding which state should assume responsibility for accepting disembarkation of people
rescued at sea.
Disembarkation issues reignited in a context characterised by a widening SAR gap in the Central
Mediterranean resulting from the penalisation of humanitarian actions and the strategic
disengagement from SAR activities by the EU and its member states. Far from being a novelty,
disputes over SAR and disembarkation are rooted in long-standing political controversies
(Carrera and den Hertog, 2015; Parliamentary Assembly, Council of Europe, 2012; Basaran,
2014). The latest debates at the EU level unfold against the background of disagreements
among Mediterranean coastal governments over the interpretation and applicability of the
international law of the sea (Papastavridis, 2017; Moreno-Lax and Papastavridis, 2017).
Some of the proposals discussed during the second half of 2018, such as ‘regional
disembarkation platforms’, which aim at shifting responsibilities for the disembarkation of
rescued persons to North African countries, are both practically and legally unfeasible (Carrera
1
The authors would like to express their gratitude to representatives from the European Commission, the
European Parliament (LIBE Secretariat), EU agencies (Frontex and EASO), UNHCR and civil society actors who were
interviewed for the purposes of this paper. They would also like to thank Efthymios Papastavridis (Faculty of Law,
University of Oxford), Michele Levoy and Marta Gionco (PICUM) and Kris Pollet (ECRE) for their comments on a
previous draft of this paper.
|12 | CARRERA & CORTINOVIS et al., 2018). The European Commission also acknowledged that disembarkation platforms would be contrary to EU principles or ‘values’ laid down in the Treaties and member states’ constitutional and human rights traditions (European Commission, 2018a). From the summer of 2018 onwards, cases of disembarkation following SAR operations conducted by NGOs and other vessels in international waters have been addressed through so- called “relocation and disembarkation arrangements”. These arrangements have consisted of voluntary, ad hoc and ‘ship-by-ship’ relocation schemes, involving a small group of member state governments ‘willing’ to accept a share of individuals disembarked in Spain, Malta and Italy. During the second half of 2018, these arrangements were conducted in a purely ‘intergovernmental’ and ad hoc fashion, falling completely outside the EU framework. Since the beginning of 2019, disembarkation arrangements have counted with the involvement of the European Commission and EU agencies, including the European Asylum Support Office (EASO) and Frontex. The Commission has played the role of ‘facilitator’ among interested member states making pledges for relocations, while EASO and Frontex have provided support in the phases of first reception, provision of information and registration of disembarked persons upon request of the governments of Italy and Malta (European Commission, 2019). In spite of the Commission’s attempt to increase ‘predictability and transparency’ of relocation arrangements, the predominantly informal, secretive and intergovernmental nature of these instruments has prevailed. A profound lack of public accountability has characterised the entire relocation procedure, including regarding the number of people disembarked and relocated, participating member states, and respect of the rights of asylum seekers ‘pushed around’ participating member states through informal relocations. This paper aims at critically examining recent developments on disembarkation and relocation arrangements in the Mediterranean. It argues that there is a wrong assumption behind current EU and national proposals and developments on SAR, disembarkation and their linkage with the allocation of responsibility for assessing asylum applications among EU member states. The prevailing idea seems to be that ‘contained mobility policies’ currently implemented in the Mediterranean are legitimate migration management strategies (Carrera and Cortinovis, 2019); i.e. that policies and instruments aimed at disengaging from SAR operations, criminalising SAR civil society actors, financing, training and sharing information on sightings of boats with the Libyan Coast Guard for the sake of ‘pulling migrants back’ to Libya, delaying or refusing disembarkation of rescued people, and disregarding the rights of people disembarked during informal relocations escape the rule of law, and therefore accountability and legal responsibility for crimes and human rights violations. However, EU and member state containment-driven action and inaction in the Mediterranean do not happen in a legal vacuum. Neither national governments, nor the European institutions and agencies are free to ‘cherry pick’ from their rule of law and human rights responsibilities enshrined in national constitutions, EU Treaties and secondary law, which apply to all individuals, including those found in distress at sea and seeking international protection in the EU. The direct and indirect action and/or inaction of those actors are captured by the concept of portable justice,
SEARCH AND RESCUE, DISEMBARKATION AND RELOCATION ARRANGEMENTS IN THE MEDITERRANEAN | 3
according to which responsibilities and potential liabilities follow not only wherever they
exercise de facto or de jure control and decisive influence, but also when their practices fall
within the scope of EU law and financial instruments.
The use of non-legally binding instruments such as disembarkation and relocation
‘arrangements’ and the informalisation of relocations among a small group of EU member
states bring profound risks to European integration. Unlike with the beginnings of European
cooperation on asylum policies in the early 1990s, the current level of Europeanisation in these
areas is – while imperfect –well advanced. ‘Flexible integration’ or ‘solidarity à la carte’ in the
area of asylum may not further but actually reverse integration and undermine the objectives
set out in the EU Treaties. It would allow some member states to free ride and lower down on
existing EU asylum standards, and create ‘coalitions of the unwilling’ implementing diverging
and competing areas of asylum within the Schengen area. These arrangements are deliberately
‘extra-legal’ and therefore challenge key EU rule of law principles set in the Treaties and
national constitutions. They pose profound risks to the consistency of the EU asylum and
borders acquis and the right to seek asylum in the EU.
After this Introduction, Section 2 of the paper briefly outlines the evolution of the SAR scenario
in the Central Mediterranean over the last few years, underlining the emergence of what we
call the politics of SAR criminalisation and disengagement in the Mediterranean. Section 3
brings to light the main legal obligations and accountability venues of member states and EU
actors regarding SAR and disembarkation stemming from the international law of the sea,
international and regional human rights standards and secondary EU legislation in the field of
border surveillance and asylum. Section 4 provides an analysis of the latest policy proposals
that have been discussed and implemented in the EU context between the second half of 2018
and first half of 2019. The conclusions highlight the need for the EU to come back to the notion
of ‘equal solidarity’, whereby responsibility is upheld and equally shared among all Schengen
countries, and firmly rooted in EU principles and fundamental rights laid down in the Treaties
and member states’ constitutional traditions.
2. The politics of SAR criminalisation and disengagement in the Central
Mediterranean
2.1 Policing SAR NGOs
On Sunday 10 June 2018, the Aquarius ship, operated by Doctors without Borders (MSF) and
the German NGO SOS Méditerranée, was heading North after having rescued 629 migrants in
the course of six different SAR operations coordinated by the Italian Maritime Rescue
Coordination Centre (MRCC) in international waters off the Libyan coast. The boat was halted
on instruction from the Italian authorities when it was located at 35 nautical miles from Italy
and 27 nautical miles from Malta (SOS Méditerranée, 2018). The Italian government refused
the Aquarius access to Italy’s territorial waters, arguing that Malta should take responsibility
for disembarking the migrants on board the vessel. The Maltese authorities denounced the
Italian government’s stance as a manifest violation of international law and refused4 | CARRERA & CORTINOVIS authorisation to dock in the port of La Valletta. This disagreement led to a diplomatic standstill and a consequent operational impasse that impeded the swift disembarkation of rescued people in a place of safety. Eventually, the dispute over the fate of the Aquarius was broken by the decision of the Spanish government to allow disembarkation of the migrants on board in the port of Valencia. 2 The refusal to allow access to Italian ports for NGO vessels conducting SAR operations represents only the last and most extreme of a series of legal and political attacks against civil society ships involved in SAR activities in the Mediterranean (Carrera et al., 2019a). Over the last three years, humanitarian civil society actors have been subject to increasing policing and criminalisation dynamics, which have resulted in preventing them from pursuing SAR activities (Commissioner for Human Rights, 2019). 3 Actions taken to disrupt NGO activities have included politically-driven criminal investigations for facilitating irregular entry, the confiscation of NGO vessels, the attempt to limit their activities by imposing ‘codes of conduct’ as well as recurrent de-legitimisation and criminalisation campaigns by some politicians and media outlets accusing, without evidence, NGOs of collusion with smugglers (Vosiliute and Conte, 2018; Cuttitta 2018; FRA, 2018a; Basaran, 2011). Since the Aquarius incident, a number of other cases of SAR operations conducted by NGOs have produced similar situations of delayed disembarkation and have forced rescued individuals to a prolonged period at sea in precarious and unsafe conditions (ECRE, 2019a), as well as additional cases of prosecutions of involved NGOs (FRA, 2019). In January 2019, the NGO vessel Sea Watch 3 carrying 47 people was permitted to dock at the port of Catania in Italy, after spending two weeks at sea, only when an agreement involving relocation in a group of member states could be agreed. 4 Soon afterwards, the Italian authorities refused to allow disembarkation from the NGO ship Mare Jonio, belonging to the Italian citizen-financed initiative ‘Mediterranea – Saving Humans’, after it had saved 49 people in international waters. 5 2 See Politico, ‘Spain will welcome migrant rescue ship turned away by Italy’, 6 November 2018, online: https://www.politico.eu/article/spain-will-welcome-migrant-rescue-ship-turned-away-by-italy-pedro-sanchez- matteo-salvini/; Reuters, ‘Boat caught in Europe's migration spat brings hundreds to Spain’, 17 June 2018, online: https://www.reuters.com/article/us-europe-migrants-italy-spain/migrant-boat-turned-away-by-italy-arrives-in- spain-idUSKBN1JD033 3 Commissioner for Human Rights, Council of Europe, Letter to Prime Minister of Italy, Strasbourg, 31 January 2019. The letter stated: “I am deeply concerned, however, about some recent measures hampering and criminalising the work of NGOs who play a crucial role in saving lives at sea, banning disembarkation in Italian ports, and relinquishing responsibility for search and rescue operations to authorities which appear unwilling or unable to protect rescued migrants from torture or inhuman or degrading treatment.” 4 See Reuters ‘Migrants disembark in Italy as Rome vows to continue hard line’, 31 January 2019, online: https://www.reuters.com/article/us-europe-migrants-italy/migrants-disembark-in-italy-as-rome-vows-to- continue-hard-line-idUSKCN1PP1Y7 5 The Mare Jonio was allowed to disembark in the Italian port of Lampedusa the day after, on 19 March. The boat was seized immediately afterwards by order of the Italian Prosecutor in the context of an investigation into possible aiding and abetting of “illegal immigration”. See: Infomigrants, ‘Italy seizes migrant rescue boat Mare Jonio’, 20 March 2019, online: https://www.infomigrants.net/en/post/15804/italy-seizes-migrant-rescue-boat- mare-jonio
SEARCH AND RESCUE, DISEMBARKATION AND RELOCATION ARRANGEMENTS IN THE MEDITERRANEAN | 5 In addition, over the last two years, reports have drawn attention to several episodes of aggression and acts of hostility by the Libyan Coast Guard authorities towards NGOs intervening in rescue operations within the Libyan SAR zone (Cuttitta, 2018). The escalation in the degree of penalisation of SAR civil society boats was taken to a new level by the Italian government with the adoption of Directive 14100/141(8) of March 2018. 6 This directive requires Italian maritime and military authorities to prevent commercial and private boats that have carried out SAR in international waters from having access to Italian ports. Five United Nations Special Rapporteurs issued a joint communication on 15 May 2019 calling on the Italian government to withdraw the directive, and they put forward a number of serious concerns about the human rights violations resulting from its application. The joint communication acknowledged that there are reasonable grounds to believe that the directive was issued with the aim of directly targeting the SAR operations of the NGO boat Mare Jonio. The Special Rapporteurs highlighted that it “represents yet another political attempt to criminalise search and rescue operations carried out by civil society organisations in the Mediterranean…[and] intensifies the climate of hostility and xenophobia against migrants”. 7 The directive was subsequently followed by the adoption of a decree imposing financial penalties of up to €50,000 and seizure of the vessel for those NGOs that disregard the prohibition to enter Italian territorial waters. 8 As Table 1 below shows, the number of migrants rescued at sea along the Central Mediterranean to has substantially decreased over the last four years. However, the politics of criminalisation of NGOs and disengagement from SAR operations have contributed to making migrant journeys across the Mediterranean even more dangerous than in the past. According to UNHCR, an estimated 1,311 migrants lost their lives along the Central Mediterranean route connecting Libya to Italy during 2018. While the total number of deaths along this route more than halved in 2018 compared to 2017, the rate of deaths per number of people attempting the journey increased sharply. In particular, the rate went from one death for every 38 arrivals 6 Directive for the unified coordination of surveillance activities of maritime borders and fight against illegal immigration according to Article 11 of Legislative Decree n. 286/1998, alias Ministerial Circular n. 14100/141(8), issued in March 2019. 7 United Nations Human Rights Special Procedures, Joint Communication, by the Special Rapporteur on the situation of human rights defenders; the Independent Expert on human rights and international solidarity; the Special Rapporteur on the human rights of migrants; the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; and the Special Rapporteur on trafficking in persons, especially women and children, 15 May 2019, ALITA 4/201 9. 8 On the so-called “Decreto Sicurezza bis” see ‘Comunicato stampa del Consiglio dei Ministri n. 61, 11 Giugno 2019’, online: http://www.governo.it/it/articolo/comunicato-stampa-del-consiglio-dei-ministri-n-61/12168; and EUobserver, ‘EU mute on new Italian decree to fine NGO boats’, 12 June 2019, online: https://euobserver.com/migration/145135
6 | CARRERA & CORTINOVIS
in 2017 to one for every 14 arrivals in 2018, and to one death for every 3 arrivals in the first
four months of 2019 (UNHCR, 2019a, 2019b). 9
The decrease in the number of entries cannot either hide the high number of people prevented
from leaving Libyan territory, and exposed to grave human rights violations and crimes against
humanity. Table 1 demonstrates how the total number of people “rescued or intercepted” by
the Libyan Coast Guard authorities increased during 2017 and 2018 to more than 15,000
people each year. According to UNHCR, during the second half of 2018, 85% of individuals
rescued or intercepted 10 in the newly established Libyan SAR region were disembarked in Libya,
where they faced inhuman and degrading treatment in Libyan detention centres (UNHCR,
2019a).
Table 1. Number of Persons Rescued under the Coordination of Italian MRCC and Number of
People Intercepted and Returned to Libya by the Libyan Coast Guard
2016 2017 2018 2019 11
Italian Coast Guard (Guardia Costiera) 35,875 22,014 3,987 40
Italian Military (Marina Militare) 36,084 5,913 642
Guardia di Finanza 1,693 1,184 1,842
Carabinieri 174 79 215
Foreign Military Vessels 7,404 1,495 42
EUNAVFOR-MED Sophia Operation 22,885 10,669 2,310
Commercial Vessels 13,888 11,355 1,438
Civil Society and NGOs 46,796 46,601 5,204 97
Frontex 13,616 14,976 4,046 35
TOTAL 12 178,415 114,286 19,778 172
People rescued/intercepted by Libyan
14,332 15,358 15,235 2,887
Coast Guard 13
Source: Authors’ own elaboration based on statistics provided by Italian Coast Guard, Frontex and UNHCR
9
The numbers reported above should be read in the context of an overall decrease in arrivals through the Central
Mediterranean route over the last three years: 181,436 arrivals in 2016, 119,369 in 2017, 23,370 in 2018 and
2,447 in the first six months of 2019. See UNHCR, Mediterranean situation, Italy, https://data2.unhcr.org/
en/situations/mediterranean/location/5205. According to IOM, from 2014 to 2018, an estimated 15,062 people
died while crossing the Central Mediterranean route, making it the deadliest migration route in the world. See,
IOM missing migrant project, https://missingmigrants.iom.int/region/mediterranean?migrant_
route%5B%5D=1376&migrant_route%5B%5D=1377&migrant_route%5B%5D=1378
10
Ryan has qualified “interdiction” as a form of extraterritorial immigration control. The interdiction of vessels at
sea, differently from SAR, aims at “preventing sea-borne migrants from reaching their intended destination”. He
qualifies the notion of ‘interception’ as “the identification of vessels, with a view to the arrest of vessels and their
passengers once they entered territorial waters” (Ryan, 2010, pp. 22 and 23).
11
The statistics under this column cover the first semester of 2019, with the exception of the Frontex statistics
that correspond with the month of April 2019, based on the Frontex Press Pack, mid-May 2019.
12
Refer to the Italian Coast Guard website: https://www.guardiacostiera.gov.it/attivita/ricerca
13
Data covering 2019 extends until 14 June 2019. See UNHCR (2019d). Libya Update, June 2019, retrievable from
https://data2.unhcr.org/en/documents/download/69930; UNHCR (2019e). Libya: Activities at Disembarkation,
monthly update February 2019 (available at https://data2.unhcr.org/en/documents/download/68273); UNHCR
(2018). Libya: Activities at Disembarkation, monthly update December 2018 (available at
https://data2.unhcr.org/en/documents/download/67499).SEARCH AND RESCUE, DISEMBARKATION AND RELOCATION ARRANGEMENTS IN THE MEDITERRANEAN | 7
2.2 Shrinking EU operational space and delegating containment
Divisions between member states on disembarkation have also led to a downgrading of the
Common Security and Defence Policy (CSDP) operation EUNAVFOR-MED Sophia, launched in
2015 with the main goal to disrupting “criminal networks of smugglers and traffickers in the
Southern Central Mediterranean”. The overall rationale and effectiveness of the operation has
been fundamentally questioned, including its negative contribution to the militarisation of
maritime surveillance and the side effect of making trips more perilous as a result of its policy
of destroying and confiscating boats (Carrera, 2018). 14 While SAR was not formally included in
the mandate of the mission, since its inception in 2015, the operation is reported to have
rescued around 49,000 migrants. 15
At the end of 2018, the continuation of Operation Sophia became another source of contention
between participating member states after a request by the Italian government to revise the
mandate of the mission, and specifically the rule according to which all asylum seekers rescued
in the framework of the mission should be disembarked in Italian ports. 16 Due to the
impossibility to reach an agreement on a new disembarkation arrangement, in March 2019,
participating states decided to prolong the mission for a further six months but without
deploying naval ships (to avoid involvement in SAR operations), focusing instead on air patrols
and training of the Libyan Coast Guard (EEAS, 2019).
EU member state politics of SAR disengagement have also included a tactical choice to reduce
the new mandate and operational area of the Frontex Joint Operation Themis in the Central
Mediterranean, which was launched in January 2018 to replace the previous Operation Triton
(initiated in 2014). 17 A key change in the scope of the Themis operation was reducing even
further its operational area to the Italian SAR zone, and in contrast to the Triton operation, not
covering the Maltese SAR area any longer. The Maltese government refused to take part in
Themis Joint Operation in the absence of a clear rule foreseeing the disembarkation in Italian
ports of people rescued in the Maltese SAR zone, which was the case under Triton’s operational
plan based on a bilateral deal between Italy and Malta. 18
Another fundamental change in the mandate of the Frontex Themis operation in comparison
with Triton is that disembarkation points are now identified on a ‘case-by-case’ basis by the
14
Politico, ‘Europe’s deadly migration strategy. Officials knew EU military operation made Mediterranean crossing
more dangerous’, 28 February 2019, online: https://www.politico.eu/article/europe-deadly-migration-strategy-
leakeddocuments/
15
Euobserver, ‘Sophia in limbo: political games limit sea rescues’, 4 March 2019, https://euobserver.com/
opinion/144304
16
Euractiv, ‘Italy to push EU for reform of ‘Operation Sophia’’, 30 August 2018, online:
https://www.euractiv.com/section/justice-home-affairs/news/italy-to-push-eu-for-reform-of-operation-sophia/
17
See News Release, Frontex launching new operation in Central Med, https://frontex.europa.eu/media-
centre/news-release/frontex-launching-new-operation-in-central-med-yKqSc7
18
The Malta Independent, “Italian MEP asks Brussels about ‘secret Malta-Italy migrants for oil deal’”, 18 October
2015, http://www.independent.com.mt/articles/2015-10-18/local-news/Italian-MEP-asks-Brussels-about-secret-
Malta-Italy-migrants-for-oil-deal-6736143776.8 | CARRERA & CORTINOVIS
Italian Maritime Rescue and Coordination Centre (MRCC) on the basis of international law.19
The limited involvement of the Frontex operation Themis in SAR activities is just the last step in
disengagement from SAR activities in the Central Mediterranean that was initiated with the
choice in 2014 to replace the Mare Nostrum operation with the much less ambitious (in terms
of SAR capacity) Frontex-led Operation Triton (Carrera and den Hertog, 2015 ; Nielsen, 2014:
Campbell, 2017). As Table 1 also shows, the overall result has been an increasingly and
progressively minor involvement and contribution by Frontex of SAR operations in the Central
Mediterranean.
The stepping up of the Libyan Coast Guard in SAR operations constituted another important
piece of the puzzle (UNHCR, 2019a). This development is directly related to the choice of the
Italian government to progressively cede control to Libyan forces over SAR operations outside
Libyan territorial waters. Italy had assumed de facto SAR responsibilities over this area since
2013, when it began its humanitarian naval operation, Mare Nostrum. Libyan authorities
submitted a declaration on a Libyan Search and Rescue Region (SRR) in December 2017, which
was then officially validated by the International Maritime Organisation (IMO) in June 2018 20.
The Libyan move was made possible by the operational and financial support provided to the
Libyan authorities by the EU and Italian authorities. According to a leaked letter 21 signed by the
Director General of DG Home at the European Commission, Paraskevi Michou, and addressed
to the Frontex Director, Fabrice Leggeri, on 18 March 2019, the Commission considered that it
would be lawful for the operational plan of the Frontex Themis operation to include procedures
for notifying sightings of boats in “distress” at sea to the Libyan Coast Guard, including data on
vessel monitoring and detection through satellite technology that is part of the EUROSUR (The
European Border Surveillance System) Fusion Services. 22 The letter also revealed that the aerial
19
Interview with Frontex Official conducted by the authors. See also https://frontex.europa.eu/media-
centre/news-release/frontex-launching-new-operation-in-central-med-yKqSc7
20
See Parliamentary questions. Answer given by Mr Avramopoulos on behalf of the European Commission.
Question reference: P-003665/2018, 4 September 2018. Retrievable from http://www.europarl.europa.eu/
doceo/document/P-8-2018-003665-ASW_EN.html; Euronews, ‘Prompted by EU, Libya quietly claims right to order
rescuers to return fleeing migrants’, 7 August 2018. Retrievable from: https://www.euronews.com/2018/
07/06/prompted-by-eu-libya-quietly-claims-right-to-order-rescuers-to-return-fleeing-migrants
21
Retrievable from http://www.statewatch.org/news/2019/jun/eu-letter-from-frontex-director-ares-
2019)1362751%20Rev.pdf The letter states that “With regard to the statement on following procedures and
notifying sightings of "distress" at sea to the "Responsible" MRCC (i.e. MRCC Libya) and also to neighbouring
MRCCs (i.e. those of Italy and Malta) and EUNAVFOR MED Headquarters, I would like to note that Italy, despite
the fact that it cannot be considered a "neighbouring MRCC" because it does not border the Libyan SRR, is
supporting the Libyan Coast Guard a lot in particular in acting during the SAR event as a “communication relay”.
In that regard, together with Malta, and following the standard practice, it would be appropriate to include Tunisia
and Egypt as well.”
22
EUROSUR purposes are “to detect, prevent and combat irregular immigration and cross-border crime”, and
contribute to the protection and saving of lives of migrants at sea. According to a leaked document on Operation
Sophia, Libya is also connected to the ‘Service Oriented Infrastructure for Maritime Traffic Tracking (SMART)’ - an
Internet-based secured communication network provided by the Italian Navy. The leaked document states that
“SMART will work as the main communication and information exchange channel in the training of the Libyan
Navy and Naval Coastguard (…) SMART is already being gradually augmented by EUROSUR, starting with FRONTEX
METEO services, which will be made available to the Libyan Navy and Naval Coastguard through a technicalYou can also read
